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In March of 1977, Roman Polanski was arrested at the Beverly Wilshire Hotel in Los Angeles and charged with sexually assaulting a minor at the home of Jack Nicholson (who was away at the time).  He was released on $2,500 bail and later indicted on six felony counts, including child molestation and sodomy.  In August, Polanski entered into a plea bargain where he pleaded guilty to a single count of sexual assault of the thirteen-year old girl.  The family, through their lawyer (the way things are done out in California), urged the trial court not to impose any jail time but instead, require that Polanski acknowledge his culpability and seek professional help for his behavior.  Sentencing was to take place the next year.  By February 1, 1978, Polanski had fled to Europe, never to return to the United States.

What happened between the August plea date and February 1 of the next year is a familiar story to all of us.  The media whipped itself up in a literal frenzy and stoked the fires.  Unfortunately for both the victim of the crime, Samantha Geimer (now a mother and housewife) and the defendant, the glitter and notoriety overtook the judge assigned to the case.  Enthralled by the prospect of celebrity, the judge let it be known that Polanski was looking at a hefty prison term, regardless of the sentiments of the State, the victim, her family or the defendant.  Ms. Geimer, who continues to talk about the case and who holds no bitterness toward Polanski, wrote in the Los Angeles Times recently ”who wouldn’t think about running when facing a 50-year sentence from a judge who was clearly more interested in his own reputation than a fair judgment or even the well-being of the victim?” (more…)

Way back in the spring of 1919, four legends of the American movies met and agreed to form a company which would provide what was then and still is called “open booking.”  What that meant was a stated intention to end “block booking” which forced theatre owners to take an entire program of pictures to get those handful of films that really mattered.  It was a radical step in the early history of Hollywood and its legacy is felt even today.  What was born of this meeting among director D.W. Griffith and actors Charles Chaplin, Douglas Fairbanks and Mary Pickford was the company known as United Artists.  It turns 90 next year, even after having survived innumerable takeovers and transitions.  And in celebration of the company and its contribution to the film industry, the Film Forum in New York City sponsors a tribute, starting tonight,  highlighting  all those glorious films released under the United Artists banner. (more…)

For those who practice in federal court, the Fifth Circuit handed down what I believe to be a significant decision on post-Booker sentencing issues.  The opinion, U.S. v. Williams, sets forth the standard of review and analyzes those factors the district court may consider when assessing a guideline as well as a non-guideline sentence.  For the federal practitioner, this case is must reading.  Go to  the Significant Decisions page.

Did you catch the article in this morning’s AG metro section about how home and auto burglaries continue to climb, “particularly in Amarillo’s troublesome southeast side.” (emphasis added)  Reporter Chris Ramirez didn’t bother to tell us what makes the southeast side so troublesome nor did the article tell us what differentiates the southeast side of town from all that mischief which occurs on the Boulevard, the subject of another lead story in the Saturday metro section.  What gives?  Anyway, that’s not the point here. 

The article noted that six auto burglary suspects had been released, either because there was no room for them at the inn or that - think of it - their bonds were simply set too low.  This is known as criminals “working the system” according to APD personnel.  But I call it simply the natural result of wrongheaded APD policy. 

Look, new law has decriminalized certain crimes and permits law enforcement to issue citations to county residents, rather than effectuating full-blown arrests, for a variety of offenses.  These include criminal mischief ($50-$500 loss), driving while license suspended (a biggie; just take a look at the typical docket sheet for either county court at law and count up the number of DWLS prosecutions), thefts ($50-$500 loss), graffiti (less than $500 damage) and possession of less than two ounces of marijuana.  Think of the number of full-blown arrests carried out by APD for just those two offenses - DWLS and misdemeanor possession of pot - and the number of manhours used up making the arrest, transporting the offender to the county jail and filling out the paperwork by the arresting officer and jail personnel.  Then consider the expense of transporting these people to the jail, processing them in, feeding them, housing them and then the hassle of having to arrange for arraignment, appointment of counsel (if requested), not to mention herding the lot to the courthouse for docket and eventual pleas.  All you guys have been there to witness the procession into the courtrooms.   

So I ask this directly: what’s so objectionable about citing the miscreants for the offense which orders the offender to court on a date certain for arraignment, entry of plea and designation of counsel?  Am I missing something here?  APD and the county attorney’s office want to complain about overcrowding in jails yet they have a valuable tool at their disposal that would, no doubt in my mind, provide immediate relief for both the patrolman and those who run the jail.  Excuse me but the police really don’t have much to complain about here.  As I pointed out in the preceding post concerning Jeff Blackburn’s not guilty verdict yesterday in Potter County Court at Law No. 2, Blackie adroitly asked the arresting officer about the discretion to issue a citation for the offender, no doubt for the benefit of the jury since it’s a recent amendment that not very many people are aware of.  What that brought was an immediate retort that that was not APD policy.  It simply doesn’t make sense and moreover, it’s poor management of limited resources since, according to the Amarillo Globe News, half of the city is awash in a veritable crime wave.  Shouldn’t the police be keeping a high profile presence in those hot spots, deterring criminal conduct, rather than spending their valuable time running in some kid caught with a joint in his sock? 

OK, the fall of Communism and the destruction of the Berlin Wall took place nineteen years ago and here in this country, we just don’t think about it unless we see some old footage which jogs our collective memory.  But the memories of that ugly, concrete wall which separated not only Berlin but the length of East Germany from its western counterpart are pervasive.  And with the secret files of the Stasi, East Germany’s secret police, having been opened to scholars, academics and the public, very painful truths are being realized.  Hack has written on a related subject previously. (see “What we all knew,” posted under Items of interest, August 16).  Recent research into these files and interviews with former East German border guards have opened up an entirely new chapter.

Thanks to the efforts of one man, Stefan Appelius, a professor of political science at Oldenburg University in Germany, the full story of numerous escape attempts made by East Germans through Bulgaria have found the light.  By Appelius’s estimates, approximately 4,500 East Germans attempted to escape over the Bulgarian border during the cold war.  He believes that some 100 were killed although the East German government never made any attempt to tally an official score. 

East Germans believed that Bulgarian efforts to control their border with East Germany and neighboring Greece were much more relaxed than the efforts put forth by the Stasi.  And in some respects, they were right.  Bulgaria was a chosen vacation destination for East Germans with its sunny Black Sea beaches and beautiful mountain scenery.  They believed that the Bulgarians were laid back and not as vigilant as their East German counterparts when it came to patrolling the border.  It was there in the mountain ranges that so many thought they could escape into non-Communist Greece.  What they did not know was that the Bulgarian government was always ready to defend its border and it worked alongside the Stasi to do so.  What the Bulgarians lacked in sophisticated sensors or tracking devices, they made up for in the number of border guards who were armed to the teeth with orders to kill.  (more…)

A few years ago, Justice Antonin Scalia, concurring in a Supreme Court death case, pronounced himself satisfied with the results of the criminal justice sysem and in particular, was quite comfortable with the low percentage of defendants who might have suffered a wrongful conviction.  He cited the methodology used by an Oregon prosecutor, Joshua Marquis, who simply tallied up the number of wrongfully convicted rape and murder defendants and divided that number by the total number of all felony convictions.  He came to a figure of .027 %.  There you have it!  But this brought on a whole new boatload of criticism.

“By this logic,” wrote Professor Samuel Gross of the University of Michigan Law School, “we could estimate the proportion of baseball players who’ve used steroids by dividing the number of major league players who’ve been caught by the total of all baseball players at all levels: major league, minor league, semipro, college and Little League - and maybe thrown in football and basketball players as well.”  Mr. Marquis responded with this: “He [Professor Gross] correctly points out that rape and murders are only a small percentage of all crimes, but then has absolutely no data to suggest there are epidemic false convictions in, say, burglary cases.” 

All this proves  is that we really have no idea of how many falsely convicted men and women are in prison as of this very day.  The main reason is that to reach a number, any number, one must extrapolate from these two numbers - those false convictions arising from murder and rape cases - and neither one can produce satisfactory, satistically-sound results.  (more…)

Vickie Van Meter, a former child aviation prodigy, was found dead on Sunday in her home in Meadville, Pennsylvania.  She died of a self-inflicted gunshot wound.  She was 26.

 Van Meter made national headlines in 1993 and 1994 when she made cross-country and trans-Atlantic flights accompanied only by her flight instructor.  She was eleven years of age, enrolled in the sixth grade.  For her cross-country flight, she left Augusta, Maine and landed in San Diego, California five days later.  She battled headwinds and turbulence that rocked her Cessna 172 around.  At the time, she was thought to be the youngest girl ever to fly across the country.  Nine months later, she flew from Augusta to Glasgow, Scotland and was credited with being the youngest girl to make the trans-Atlantic crossing. 

As an adult, she attended Edinboro University in Pennsylvania and earned a degree in criminal justice.  She later worked as an investigative agent for an insurance company but, according to her mother, expressed an interest in psychology and began making applications to graudate schools.   

Her brother, Daniel Van Meter, said that she had battled depression and did not believe in taking medication.  Her family thought that she was “dealing with her problems.”  Yeah, she dealt with her problem all right.  There’s a lesson here for those who suffer from depression, have loved ones who do or are close to someone who battles these demons on a daily basis.  And it is this: don’t accept for one minute the argument that depression is something that can be handled “on its own.”  Depression is a malfunction of the brain on the cellular level.  It’s not something that you can shrug off like the flu or a social slight.  You wouldn’t dare suggest to a diabetic that they junk that old insulin and start on a new path.  Neither should you think that someone who is depressed, and I mean really depressed, can do it alone or solve the problem through self-medication. 

Vickie Van Meter obviously thought that she could “deal with her problems.”  She won’t have to give that a moment’s notice anymore.  Don’t let anybody, any organization or group disbuse you and don’t fall for any blandishments which preach mind over science and medicine.  Leave the New Age philosophy to the tree-huggers. 

A photojournalist . . . 

Philip Jones Griffiths, a passionate pacifist and crusading photojournalist who covered the Vietnam War, died at his home in London on Wednesday.  He was 72.  The cause of death was cancer.  While critical of American foreign policy in Southeast Asia, his photographs of American soldiers tended to humanize their plight in combat.  One of the most famous of his photographs showed an American GI offering a canteen of water to a mortally wounded Vietcong fighter who had survived for three days with wounds to his stomach, holding his intestines in with a cooking bowl.  The haunting image was played out in the infamous scene in Francis Ford Coppola’s 1979 ”Acopolypse Now.”

Griffiths once said at a lecture at the Frontline Club in London, “There were some bad G.I.’s who did terrible, terrrible things.  But for the most part they were kids who were confused.  They were not the enemy to me.”  As Griffiths saw it, the enemy was usually governments and bureaucracies and he saw photography as a means to illuminate their collective failings and lies.  “Virtually the whole of society believes in what they believe not by direct experience but by what they’ve been told.  We photographers are in this exalted, privileged position of actually going out to find out for ourselves, and that’s why we’re so dangerous.  Because we were there.  We saw what happened.”

Griffiths’s time in Vietnam was marked with professional and personal difficulty.  The kinds of pictures he took were difficult for Magnum, the photographic agency which handled his product, to sell to various publications.  They were simply considered too controversial.  As a result, Griffiths often found himself short on cash and at one point, considered leaving Southeast Asia for good.  But in 1967, he managed to take a picture of Jacqueline Kennedy in Cambodia in the company of a British aristocrat who was rumored to be her latest love affair at the time.  The proceeds off of that bit of paparazzi coup tithed him over sufficiently to remain on his post.  Afterward, he took most of the memorable shots which comprised his 1971 book Vietnam, Inc., considered to be a classic which helped turn public opinion against the war.

. . . and a psychiatrist

Dr. Frank Ayd, a psychiatrist who was the first to receive a permit from the Food and Drug Administration to use Thorazine to treat schizophrenia, died on Monday in Baltimore.  He was 87.  The importance of his work with Thorazine, which began in 1952, meant that those patients with chronic psychiatric problems could be treated in a hospital or nursing home and no longer would be required to reside in specialized settings under severe restrictive conditions.  His work also saved countless patients from the ghastly lobotomy procedure which was still being employed at the time.  For that alone, he should be awarded the Congressional Medal of Honor.  

His groundbreaking study concluded with a finding that 80% of those 300 patients treated with Thorazine were able to find and keep useful employment.  The findings from this study offered profound economic implications since it offered a way to cut more than $1 billion off what the nation was spending on warehousing the mentally ill.  This was no small sum 55 years ago.

Dr. Ayd never doubted that he was treating brain diseases.  He tested his patients’ psychological, neurological and behavioral responses to new drugs, then quantified the results.  This procedure placed him at odds with the majority of those in the mainstream psychiatric community who continued to hold on to basic Freudian concepts which stressed a more impressionistic approach to therapy.  He soon became known as the leading pioneer in the rapidly-changing field of psychopharmacology.  He contributed to more than 50 books and wrote over 400 articles on the subject.  His “Ayd’s Lexicon of Psychiatry, Neurology and the Neurosciences” is a standard reference used in medicine and in teaching. 

There wasn’t much handed down by the Court of Criminal Appeals today except for a slew of writ dispositions.  The reality is that the Court is indeed awash in pro se writ applications from all 254 counties.  98% of those get the “denied w/o written order” treatment but the remaining 2% rise to the top and provide some interesting lessons.  Let’s take a look at a few of the per curiam orders handed down this morning.  You can learn a few things from reading them.

Paying closer attention to the juvenile record of the client

Ex parte Aaron James Hall, Nos. AP-75,868 & AP-75,869 - Appliant contended in his pro se writ that his trial counsel rendered ineffective assistance of counsel because he failed to know the law concerning use of a prior juvenile conviction for enhancement purposes and caused Applicant to enter a plea of “true” to that juvenile conviction, resulting in some pretty severe punishment arising from his convictions for murder and conspiracy to possess with intent to deliver a lot of cocaine - 65 and 30 years TDC respectively.  The trial court found that trial counsel’s performance was deficient and prejudiced Applicant.  Relief was granted and the case was remanded for new punishment hearing.  Moral?  Best take a closer look at the juvenile record and be damn sure was is available for enhancement and what isn’t. 

Avoid filing an Anders brief if at all possible

Ex parte Jesse Nunez Torres, No. AP-75,874 - Appellate counsel for Applicant filed an Anders brief but failed to provide the client with a transcript of the voir dire examination of the venire panel.  In his writ, Applicant alleged ineffective assistance of counsel based on this omission.  Guess what?  The Court agrees because once appellate counsel files the Anders brief, he or she must provide the client with the entire record so that the client may elect to file hir or her own pro se brief.  You can’t pick and choose what to give them.  Once the Anders brief is filed, you have to provide the client with the entire record.  You might as well run off the file while you’re at it and give it to them as well.  Be good to yourself and do what is necessary to file a working brief.  I understand that sometimes, there’s just nothing there.  OK, fine, file the Anders brief.  But you know, if you really take the time and look hard enough, you can find something to write on in good faith.  I’ve often said: when in real doubt, go read the judgment carefully.  There’s usually something wrong in it and if nothing else, bring it to the attention of the appellate court for correction.  You may think that filing the Anders brief is the easy way out of it but you’re wrong man, dead wrong.  Your work load triples. 

Thumbing your nose at the trial court and failing to show for a hearing - not a good idea

Ex parte Jorge Luis Rodriguez, No. AP-75,877 - Oh man, this is a good one.  Applicant complained in his pro se writ application that his lawyer rendered ineffective assistance of counsel by failing to inform him that a co-defendant had already confessed in a taped confession to committing the crime for which he was indicted and that had he (Applicant) known of the existence of the taped confession, he would not have pled guilty to robbery and taken 22 years in prison.  Applicant also alleged that his lawyer was working under a real conflict of interest by representing another co-defendant at the same time that he represented Applicant.  The State agreed that Applicant had pled facts, which if true, would entitle him to relief.  The trial judge ordered that Applicant’s trial counsel, Garry Washington, file an affidavit addressing the IAC claims.  Four months later, in the absence of anything from Garry Washington, Esq., the trial judge entered a “show cause” order directing counsel to appear in person with affidavit in hand or explain why he had not executed the affidavit.  Mr. Washington failed to show up in court and failed to file anything.  The trial court then held a hearing on all of Applicant’s allegations and recommended relief based on Mr. Washington’s failure to disclose the co-defendant’s taped confession and his failure to disclose his conflict of interest.  And what was the cherry on top that made all of this so egregious?  After Applicant unknowingly and involuntarily pled to the robbery that netted him 22 years, the co-defendant, who had confessed on tape to having committed the robbery alone, had his case dismissed because of insufficient evidence on the very same day that Applicant pled guilty.  How do you like them apples?  Think the trial judge should report Mr. Washington to the Office of the Chief Disciplinary Counsel for disciplinary proceedings?

Don’t do this

Ex parte James Edward McGruder, No. AP-67,571-01 - Applicant argued in his writ that his trial counsel was ineffective because he described Applicant as a felon during closing arguments.  The Court remanded the case to the trial court for further fact finding because it determined that calling one’s client a felon during final argument alleges facts that, if true, might entitle the applicant to relief.  OK, watch how you describe your guy before the jury.  Think about what you’re saying.

. . . and I hope the Applicant wins on this one if what he argues is true

Ex parte Joe Davis Miller, Nos. WR-69,469-01 & WR-69,469-02 - Applicant was convicted of two counts of robbery and sentenced to twenty years on each count.  He argues that the Board of Pardons and Paroles revoked his parole because he violated certain sex registration requirements.  But he also argues that he does not have a “reportable sex offense conviction” which would require him to report and register as a sex offender.  The Court remands the case to the trial court to determine if Applicant has, in fact, a reportable sex offense conviction, to determine if Applicant is susceptible to reporting requirement and to determine if the Board revoked parole because he failed to comply with sex registration requirements.  Hasn’t the Court already ruled that Article 62.001(5) cannot be applied against a parolee in the absence of a reportable sex offense conviction? 

Khalil Shikaki is a pollster in Ramallah, West Bank who has been conducting surveys among Palestinians for over 15 years.  His are regarded as among the few independent and reliable gauges of Palestinian public opinion.  He has just completed his regular survey which takes place every three months.  And his findings are most depressing. 

The poll shows an overwhelming majority of Palestinians support violence over negotiation as a method of “settling” long-standing disputes between the PLO, Hamas and Israel.  The same “overwhelming majority” also supported the attack earlier this month on a Jewish seminary in Jerusalem which killed eight young men, most of them teenagers.  The survey shows unprecedented support for the shooting of rockets on Israeli towns from the Gaza Strip and an end to the peace talks between the PLO and Israel.

Shikaki said he was shocked because the survey showed greater support for violence as a political weapon than at any time since he has been taking the polls.  Never before, he said, had surveys shown a majority favoring an end to negotiations or the firing of rockets onto Israeli territory.  “There is real reason to be concerned,” said Shikaki.  His survey also shows growing support for Hamas over the secular Fatah (associated with the PLO).

The numbers are downright frightening.  (more…)